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Anti-Smoking Code Faces Legal Hurdle

WESTCHESTER'S tough anti-smoking ordinance, adopted less than two weeks ago by the County Board of Health, is already facing a legal challenge from restaurateurs and tavern owners. And even if it clears that hurdle, the amendment to the Health Code -- considered one of the strictest in the state -- may be quickly superseded by a weaker bill out of Albany intended, in part, to ease the economic impact of no-smoking policies on the tourism and hospitality industries.

But those who support Westchester's stricter stance are also wasting little time. They are mounting an intense lobbying campaign in the State Legislature to quash the pending bill, which would undo the efforts of many local jurisdictions to curb smoking.

In particular, the anti-smoking groups have taken issue with language in the proposed state law that says "the hospitality and tourism industries are vital to New York's economy" and adds that restrictions put into effect by localities are "confusing, burdensome and costly."

"It may be a money issue for some groups, but it's a health issue for us," said Lillian R. Jones, a spokeswoman for the Westchester division of the American Cancer Society, one of the groups fighting passage of the state proposal.

She said the Federal Food and Drug Administration has labeled tobacco a Class A carcinogen, equal to asbestos and radon. And the Federal Centers for Disease Control and Prevention in Atlanta has reported that tobacco kills more Americans each year than alcohol, cocaine, crack, heroin, car accidents, homicide, suicide, fires and AIDS combined.

Smarting under the suggestion that financial concerns should dictate how public health issues are addressed, Dr. Douglas G. Aspros, president of the county's Board of Health, said last week, "We're not the Board of Economics, we're the Board of Health."

Just before the Board of Health voted 9 to 1 to adopt the newest restrictions, Dr. Aspros spurned a request from County Executive Andrew P. O'Rourke to wait until passage of the statewide regulation.

The state proposal, which has gained the support of the tobacco industry, is also backed by State Senator Nicholas A. Spano and State Senator Guy J. Velella, both Republicans from Yonkers.

Dr. Aspros said the increasing trend nationwide is to restrict smoking in public places and Westchester is following suit. He said that in most cases, New York's health laws set minimum standards and counties have been allowed to enact stricter codes. Among other things, the Board of Health is opposed to the pre-emptive nature of the state's anti-smoking proposal.

By contrast, many who criticize the county's tough restrictions and similar ordinances adopted in New York City and Nassau County, argue that the smoking issue extends far beyond health concerns.

"If everyone is so worried about secondhand smoke, then why not ban it in the home?" said Scott Wexler, executive director of the Empire State Restaurant and Tavern Association, which represents 5,000 eating and drinking establishments.

Restaurant owners say they will challenge the County Board of Health's new ordinance in court.

Albert J. Pirro, a White Plains lawyer hired to represent the restaurateurs and tavern owners, contended that the board had violated open-meeting laws and failed to draw up an environmental assessment of the ordinance's impact. He also said the County Board of Legislators and not the Board of Health should have voted on the new restriction.

On all three points, Dr. Aspros disagreed, saying that his board "followed the letter of the law and more."

The suit is being prepared for filing in State Supreme Court in White Plains.

Besides the arguments offered in the suit, restaurant and tavern owners say their industry should be left alone to regulate itself and respond to marketplace demands. The owners contend that they are being subjected to undue interference by government.

A placard carried by a picket outside Health Department headquarters in Hawthorne before the county's Board of Health voted on Feb. 29 read: "Mind your own business. Let us mind ours!"

The restaurateurs estimate that about 25 percent of diners want to smoke, and they say that by law most eating establishments already have separate sections to accommodate smokers and nonsmokers. New York State's Clean Indoor Air Act limits smoking in most public places, including stores, schools, taxis, work sites and most restaurants. Smoking is allowed only in private homes, bars, some hotel rooms, tobacco businesses, limousines under private hire, some box seats in indoor arenas and restaurants with 51 or fewer seats. It is also permitted at private social functions.

Those opposing the new county law also say that many owners of small restaurants are struggling to get by and that the law puts Westchester's restaurateurs at a disadvantage.

"It makes it harder for us when the smoking laws in nearby counties aren't as strict," said Brian Silverman, the owner of the Louisiana Cajun Cafe in Dobbs Ferry.

"What's next?" he said. "Are health officials here going to ban red meat too? They're making it impossible for us to compete."

The new code passed by the County Board of Health, which is to go into effect on July 1, bans smoking in all eating areas of restaurants, regardless of the size of the establishment. In that respect the law is stricter than one passed in New York City, which does not prohibit smoking in restaurants with fewer than 35 seats.

On Long Island, anti-smoking laws permit restaurants to set up smoking sections.

The Westchester code says that smoking may be allowed in a bar area so long as customers are not waiting there to be seated. Food can also be served in the bar so long as the food service constitutes less than 40 percent of the bar's gross sales.

The board is also considering an outright ban on smoking in bars and taverns.

The bill pending in committee in the State Legislature to set uniform standards for smoking in restaurants and taverns statewide says the owner of a food-service establishment must designate a contiguous nonsmoking area "sufficient to meet customer demand and may not determine that no demand exists."

It says that if 75 percent of the establishment's indoor seating is designated nonsmoking, then customer demand is considered to be met. But it also says that a designation of less than 75 percent does not "create the presumption of noncompliance."

Senator Spano said the proposal for a uniform law was "not designed to put tourism and hospitality before the health and welfare of the state" but rather to balance both sides' needs.

He predicted that the Legislature would eventually adopt a measure that was more restrictive than the current proposal. "This is just a starting point," he said. "We're willing to negotiate."

At the New York City offices of the cigarette manufacturer Philip Morris, a spokeswoman, Mary E. Coughlin, said the company was in favor of a statewide law.

"Our position is that business owners should determine their own policies, based on customer preferences," she said.

Representing the other side, a spokesman for the Coalition on Smoking or Health, which represents the American Cancer Society, the American Lung Association and the American Heart Association, said the Washington-based organization would lobby against the State Legislature's proposal.

"Given New York's prominence in taking the lead in tobacco control, we will work very hard to see that those efforts are not weakened in any way," said Peter Fisher, the spokesman.

He added that similar pre-emptive state measures have overturned local smoking ordinances in Connecticut, Delaware, Florida, Illinois, Iowa, Louisiana, Nevada, New Jersey, North Carolina, Oklahoma, Pennsylvania and Virginia.

But last year, pre-emptive legislation introduced in 30 state legislatures passed in only 4 states.

"We've begun to see a turnaround, some successes," Mr. Fisher said. "But the problem is that we have to spend all of our efforts in blocking preemptive bills, and that diverts our attention from developing stronger measures."